Protect Your Brand – Enhancing Your Rights Through Trademark

Having brand recognition elevates your business and brings your customers back to you while increasing your revenue. We can instantly recognize logos such as Nike’s checkmark, Apple’s bitten apple, Target’s bulls-eye, Pepsi’s tri-color (red white blue) circle, and Ebay (using its own name) which are some of the most recognizable brands. For the South Asian community internationally recognized logos you may recall are Air India and Shaadi.com. Creating your own unique logo is a stamp which represents your business and is the start of your Brand.   You can enjoy the thrill of developing your own imprint under a trademark license and tailor and mold your business Brand and reputation. You can protect your Brand through Federal Registration called Trademark.

What is a Trademark or Service Mark? A trademark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others. A Service Mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. Throughout this booklet, the terms “trademark” and “mark” refer to both trademarks and service marks. A Trademark or Service Mark can only protect the Brand Name or logo used on goods and services. A Trademark or Service Mark gives you rights over your name and logo and control over your reputation. For example, if someone registers a domain name or business name with your Trademark or Service Mark, even if it is available with that particular registrar, they would be required to surrender it as it would infringe upon your Trademark Rights because of your Federal Registration with United States Patent and Trademark Office (“USPTO”).

What to Consider when selecting a Mark? Before filing a Trademark/Service Mark application, you should consider (1) whether the mark you want to register is registerable, and (2) how difficult it will be to protect your mark based on the strength of the mark selected. On a side note, the USPTO only registers marks, You, as the mark owner, are solely responsible for enforcement. The most common reason to refuse registration is a “likelihood of confusion” between the mark of the applicant and a mark already registered or in a prior-filed pending application owned by another party. There are two factors taken into consideration by the USPTO to determine if a likelihood of confusion exists with another party (1) the marks are similar, and (2) the goods and/or services of the parties are related such that consumers would mistakenly believe they come from the same source. You may have a similar mark to one that is already registered so long as the goods and services are not related. It is important that prior to filing you determine whether your proposed mark is likely to cause confusion with another mark. Other factors to consider in selecting a Mark is whether people will be able to remember, pronounce, and spell your mark. Another consideration to take is to conduct a complete search of your mark before filing an application with USPTO. This will save you time and money and determine if there are any potential problems that may occur with filing.

In addition, note that State trademarks only protect a mark in a specific state. However, Federal trademarks offer national protection of your mark, but are only available to companies whom conduct business in more than one state. If you conduct business in only one state, many business owners find that this offers enough protection. An owner of Web business may want the protection of a federal trademark to avoid any legal challenges. In order to have a stronger mark and more rights over the use of your mark you may want to consider Federal registration. Many businesses started small like Apple which started in a garage, or Other Businesses many which began as a cottage industry (home-based) and is now widely available.

Filing an Application Filing a trademark application can be complex and you will be required to comply with all requirements of the trademark statute and rules. An experienced attorney can take charge of your filing and advise and guide you before and after the trademark application process, which includes police and enforcement of your trademark registration if issue occurs. An attorney will likely save you from future costly legal problems by conducting a comprehensive search of federal registrations, state registrations, and “common law” unregistered trademarks as well as time while you further your business agenda. In addition, an attorney can assist you in navigating the application process for optimal protection of your trademark rights such as properly identifying and classifying your goods and services, and responding to any refusals to register that may be issued. Contact Singh Law to consult with an experienced attorney in starting your Trademark application today.

Singh Law, led by Principal Seema M. Singh, Esq., specializes in the spectrum of Trademarks and Business Law. Based in Princeton, N.J., we offer free 15-minute consultations for all clients. Email us at info@ssinghlaw.com or call us at 609-454-3165 today.

Visit us at www.SSinghLaw.com

Getting Your Affairs in Order – Wills, Trusts & Estates

Planning your Affairs now can save your family the stress, costly court battles and potential infighting that often occur between family members when one passes away or becomes incapacitated. Assuring that your end-of-life medial decisions, interests and wishes are met now will provide security and assurance that your loved ones are financially secure and your medical desires are met in case you pass away or are no longer able to make your own decisions due to illness or incapacitation.

Consulting with an attorney and legally formalizing your interests can resolve any future disputes which may occur. Even more, choosing an appropriate executor or trustee who knows the difference between your interests and their own and who will work for you to protect your interests is vital. You want to be sure that the assets you’ve worked so hard to gain in your lifetime end up in the right place and do so efficiently and as quickly as possible. By planning ahead you will protect yourself and your heirs from state and third party intervention where your interest are not accounted for in case of your untimely death or incapacitation. For example, a parent may fail to select a legal guardian for their minor children, wherefore the court will be left to decide the fate of your precious children. In the same manner if you fail to name a Health-Care Proxy or Power of Attorney and you fall ill or become incapacitated and are no longer capable of managing your money or your medical care the courts rather than someone you trust may make those decisions for you.

Formalizing your wishes can shield your family from further stress at a time when your loved ones are vulnerable and emotional in the face of tragedy. Additionally, it will protect your Estate from creditors, taxes and other parties whom wish to take a piece of your earnings and assets.

Trust & Estates and Family law is often complex and varies from State to State so no general rule really applies. An attorney who specializes in this area can clarify all the principles related to your jurisdiction because after the death of a loved one the worst thing to think about is how one will cope financially.

Contact Singh Law to consult with an experienced attorney in getting your affairs together today and peace of mind for the future.

Singh Law, led by Principal Seema Singh, specializes in the spectrum of Family Law, Business Law, and Trust & Estate Law. Based in Princeton, N.J., we offer free 15-minute consultations for all clients.

Email us at info@ssinghlaw.com or call us at 609-454-3165 today.

Visit us at www.SSinghLaw.com

 

EB-5 Investment Visa Category – An Alternative Pathway for Foreigners and their Families to Gain a Permanent Green Card in the US while Participating in the Economic Growth and Job Creation in the US through Capital Investment

The Immigrant Investor Program also known as “EB-5” is an alternative method for foreign investors to gain a green card and a permanent residence status while implementing economic growth and employment in the United States through capital investment and job creation.

It was created by the Congressional Act of 1990 and has been reauthorized annually to promote U.S. economic growth. It enables businesses and real estate developers seeking capital certain designated visas to become approved to accept investments from foreign investors.

According to Seema Singh, Managing Director of Singh Law, LLC, “EB-5 is a type of immigration program for foreign families that does social good for all communities and the U.S. economy.” In its concept, it is a triple win. When traditional sources of U.S. capital are not available the EB-5 program allows for foreign investors to invest in the U.S ($500,000) upon proving that the investment will create a minimum of 10 full-time U.S. jobs, and allows eligible immigrants (and their immediate family members) to enter the U.S. on a conditional two-year green card leading to a permanent green card after 2 years. Those investments then allow communities and real estate developers to build, renew, and fortify. For the U.S. Labor market, it grows jobs.

While the profile of immigrants in the U.S. evolves, the attraction of the U.S. as the #1 global country for immigrants continues. According to Pew Research, immigrants in the entire U.S. increased from 7.9% in 1990 to 13.0% in 2012. Immigrants are living in virtually all states and the most diverse immigrants are living in 15 states including California, New York, New Jersey, Florida, Nevada, Hawaii, Texas, Massachusetts, Maryland, and Illinois. This means EB-5 investment has broad potential across the U.S. for citizens, immigrants, and communities.

There are many EB-5 components encountered like Form I-526, H-1B visa holder status, or compliance with section 203(b)(5) of the Act, financial thresholds, geographic requirements, and employee rules. There are also many hurdles—including complexity, long approval times, and unexpected in-process changes. These details in the law quickly positions most to understand that their successful immigration process and business structure will require a good and experienced attorney.

There are 3 substantial categories in EB-5 to understand at the highest levels—the type of enterprise that can be created; the job or employee profile; and the legal investment thresholds.

  1. Types of Enterprise. EB-5 supports new commercial enterprise or troubled enterprise business structures. The enterprises, whether new or troubled, can be any for-profit activity structured as a sole proprietorship, Partnership (whether limited or general), Holding company, Joint venture, Corporation, or Business trust or other entity, which may be publicly or privately owned. The trigger date for the type of enterprise that can operate is November 29, 1990. Businesses established before this dates has two additional requirements to meet for EB-5 compliance and businesses established after this date are considered new (unless the business is a troubled enterprise). A troubled enterprise means the business has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526.
  1. Types of Jobs Profiles. Requirements for Job Creation. At least 10 full-time direct qualifying jobs or if the investment in a Regional Center project 10 full time indirect jobs qualify as well. Whether full-time direct or indirect or job sharing, must be created or preserved in order to be in compliance with the act. Qualifying jobs are defined as: “a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.”
  1. Types of Capital Required. Understanding the capital requirements to succeed under EB-5 might be characterized as the ‘2×2.’ There are two minimum investment levels and there are two geographic considerations to meet capital requirements. The minimum investment levels can be described as:
    1. General. The minimum qualifying investment in the United States is $1 million for direct projects.
    2. Targeted Employment Area (High Direct Unemployment or Rural Area) or through the Regional Centers. The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
EB-5 remains one of the most advantageous and complicated processes but those who make it through will affirm two things: 1) it is a win/win for the US and for foreigners and 2) great legal counsel is essential to their success.

Singh Law, led by Principal Seema Singh, specializes in the spectrum of Immigration Law and Business Law including the EB-5 Immigration process. Based in Princeton, N.J., we offer free 15-minute consultations for all clients. www.SSinghLaw.com or 609-454-3165.

Trademark versus Franchise: Which is the Better Business Path?

When answering this question, it really comes down to the philosophy of the business around control and what is the cost of developing one’s own company under a trademark license or accessing a pre-existing business operation of a company through a franchise. Many prospective business owners like the idea of investing in a franchise that has a well-known reputation and goodwill instead of starting from scratch. Others enjoy the thrill of developing their own imprint and nuances under a trademark license with a business experience they can tailor and mould into its own reputation. Both avenues offer strong benefits that a business owner must weigh to make the right choice for this important image and financial path. So let’s get started.

What’s in the trademark approach? A trademark license is where the owner of the trademark also known as the licensor permits the purchaser, known as the licensee, to use or service the trademark in accordance with specific agreed upon terms for payments in royalties. A trademark agreement is a less restrictive and costly form of agreement that allows prospective business owners to still have some form of reputation attached to the business while still maintaining control over how the business is managed. A trademark license agreement offers no such treatment as an owner can award as many licenses without making any special considerations

The Franchise Path. Franchise agreements are sometimes referred to as a trademark’s evil twin because of the restrictions and large investments involved in the process. A franchise agreement is often complex because of the state and federal regulations that are mandated. It also offers some significant benefits and support in terms of training, site-selection assistance and marketing. Additionally, it has an exclusivity clause which ensures that no other person will be awarded a franchise in your location in an effort to reduce competition.

Trademark rights are a subset within franchised business as they are operating under a licensed trademark–the same policies and rules about imaging, customer experience, revenue, etc. The parent company in any franchise operation retains a lot of control over the management of the business. The element of control is one of the most distinguishing features of a franchise from a trademark business.

What’s Next? After finishing your business plan and/or research, you should seek legal advice in determining which form of agreement best suits you. An experienced attorney can advise you of the pros and cons of each form of business such as having control versus having support in respect to management operations and marketing savvy. In the eyes of the law, the two paths are seen as worlds apart so an informed decision is a wise course of action.

Is it Still Possible to Own a Franchise?

The American dream is still a fantasy for many and overrated for others. Different levels of success have been achieved by different groups by using different strategies. Asian Indians have navigated their path of success rising in the boardrooms of different industries and through strong entrepreneurial paths. Today, they own 20,000 hotels in the US and out of this 8530 are independently owned, while 11,626 are franchised. Franchised opportunities are a very popular way used to attain the American dream in this community because of the security which it provides.

 

So the question of is it possible has a clear answer with a resounding yes. The franchising relationship between the parent company and the purchaser of the franchise is the payment of a designated amount for licensing rights to use the brand. Franchising is governed by its own law because of the complexities involved with having many businesses with different owners operating under the brand name, policies and rules. The law of franchise serves both to protect investors, the parent company and the general public. A franchise business is so appealing to many because the model used is a proven and success inevitable. Can you think of how many failing Burger Kings and McDonalds you know? The answer is probably none or quite a small amount because having a franchise is duplicating the business model and strategy of a successful business.

 

Even though having a franchise sounds easy, the process to get there is often very complicated. An attorney that specializes in this area of the law is a necessity because of the huge commitment it entails both financially and emotionally. An attorney who specializes in this area can explain the terms and jargon used with the contract and all consequences of failure of the franchise such as lawsuits or bankruptcies. On the other hand someone who does not specialize in this area may not be able to explain the terms in a clear and concise manner like that of an experienced franchised attorney. Additionally, if a purchaser is terminated or renewing a franchise agreement, an attorney needs to negotiate on their behalf because sometimes terminating a franchise can cause hardship. Becoming the owner of a franchise can be very rewarding but no one should enter into the business with their eyes closed.

 

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International Business, Nationality and Your Business – 3 Important Areas You Must Consider

If you have a business with international management and or production, hire an attorney who specializes in business law. This wise advice is worth noting because an attorney with this special insight can explain how a taxpayer can be most efficient in setting up their business, avoiding some costs with having business in another country, and creating the framework for the business to be successful over time.

 

It is no secret that we live and do business in a global world where we are interconnected in almost every way possible. One lens of globalization in the business sector is seen through jobs and employment. If a US business wanted to spread their wings and establish business in another country, then seeking a thriving marketplace that matches the emerging trends and employment structure is key to starting a business overseas.

 

For example, India is a thriving market place for new and established businesses because of their population is very proficient in areas such as software technology, data services, online customer service, infrastructure and e-commerce.

 

Three important aspects of starting business in a foreign country are the implications of nationality in the business structure. Why is this important?

  • Revenue. Nationality of a company determines which country collects taxes and which country should offer protection to the company if/when there is turbulence in the business location.
  • Location. Nationality determines where the management and control of the business takes place. For example, there is a common misconception that nationality of the company is where the business was incorporated or where it resides—not where the work gets done. Many businesses located in India are used only to carry out production but the management of the company takes place in another country. Therefore, even though these companies also located in India and perform important tasks necessary for the company to succeed, the company would not be an Indian national. This has major implications on the finances of the business because it would now need to declare its profits in order to be assessed for tax purposes in US. This aspect is foundational to avoid being taken to court for tax evasion which carries a penalty of imprisonment.
  • Civil Privileges. Nationality also determines the diplomatic protections by the country if there is civil unrest or political turmoil for the company.

 

As big business and small business alike seek the best strategies to operate their business, nationality will continue to evolve and remain an area of counsel for international success. Equally relevant in strategy is the need for members of the U.S. Asian Indian community to seek counsel as they may also go back to Indian to start companies.

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Not all that Glitters is Gold . . . Anymore.

In today’s society everyone is trying to turn their dollar into a million by investing into companies that seem prosperous—companies with upside that you can trust. These harsh economic times have taught us that no company is indestructible and we must be more vigilant in how we invest. The lessons from the 2008 financial meltdown, and the glimmers of residual headlines that continue, make it clear that understanding the corporate leadership philosophy and organic behaviors of a company is essential to being a strong steward of your money and investments. On any given day, you may need to ask “what do you really know about corporate law and how these companies are managed?”

Corporate law is very complex but at the heart of corporate law and governance is the business judgment rule. This rule is a legal presumption that provides the decisions of a director or officer are not subject to challenge nor breached their duty of care if two conditions are met:

  • Director or officer of a company is disinterested,
  • Director or officer has acted on an informed basis, in good faith, and with an honest belief that the action taken was in the best interests of the company.

So how does this rule affect you? It means that directors’ decisions will not be challenged once they acted in good faith even if the company loses money and the shareholders stock value decreases. In order for a shareholder to succeed in a case against a director, the shareholder must overcome the business judgment rule and be compensated for any loss suffered. They must rebut the business judgment rule as a shareholder plaintiff has the burden of demonstrating that a director breached the duty of good faith, duty of loyalty, or duty of care. This rule is the Achilles heel of many shareholders existence because of its unjust consequences as it is very difficult to rebut this presumption.

So what does this mean for investment? It means understand more than you would have in the past about the company, and whether it fits with your goals, has a track record– whether its names you know–Facebook, Microsoft—and those you don’t. For example, Asian Indians are one of the emerging talent pools being recruited to work in diverse industries. In the U.S, one third of the Asian Indian population is employed in the computer science and engineering sector. Another one third is employed in the business and sales sector; and 1 out of 7 people in Silicon Valley is Asian Indian. Does the company that you are reviewing for investment have that talent reservoir or are they positioned to attract that talent placing them in a position for impact? Is the company operating within their bylaws?

An attorney consult is an invaluable resource in evaluating the operations of a company before making the investment.

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Suing is an Option

Litigation law is a cliché and a reality in the U.S. Some say it is a culture where ambulance chasers thrive and lying has tacit approval if it makes a quick dollar If you are in business or life throws you a curve ball, make no apology for having your attorney on speed dial. Litigation without representation equates to suicide.

 

One sector where the demands and the trend for lawsuits equally co-exist is the service sector. This is a segment where the Asian Indian community has strong representation—from owning businesses to professional areas such as being a doctor, accountant, financial representative and more. The common bond that the service sector enjoys is the outcome of being very customer oriented and success relies on the satisfaction of customers and employees. However, this goal isn’t always met for many reasons, but those who experience a failure as customers, and even dissatisfied employees, believe in their right to sue.

 

Business owners and medical practitioners are constantly faced with lawsuits ranging from malpractice to negligence or wrongful termination. At the drop of a hat someone may file a lawsuit for what some describe as one of the most frivolous incidents causing financial distress. Lawsuits can be costly, time consuming and damaging. The litigation process for anyone is an unwanted hassle which distracts you from your business or profession. However, if an owner must go through the litigation process, a reputable and capable attorney should always to be chosen to look out for your rights and to avoid unwanted compensation to the other party.

 

Three important elements of a litigation law attorney profile that you should seek include:

  • Operating on All Levels. Look for one who knows the state laws and/or federal statutes related to the dispute so they use loopholes or special features in the case to achieve the best result. No one should ever be in a litigation matter and not have any form of representation to protect their interest.
  • Faces Complexities. Understands the complexities of the law but they are trained and capable to guide the client through muddled waters to ensure your success.
  • Understands the Best Route. Recommends settlement out of court where it may be judicious and less expensive to take that path.

 

Litigation is always a frustrating process, but with a competent attorney guiding you it may be a little less stressful and a lot less expensive.

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